I write about how technology shapes society, and vice versa. In addition to blogging for Forbes, I cover tech policy for Ars Technica. I'm an adjunct scholar at the Cato Institute and have a master's degree in computer science from Princeton. I live in Philadelphia with my wife and our two cats. There's more information about me on my website, including a comprehensive disclosure statement. Please follow me on Twitter. You can email me at contact@timothyblee.com. (I don't really like Google+ but I need to put my profile here to show up in Google search results)

The Supreme Court Should Invalidate Software Patents

Last weekend I was thrilled to hear one of my favorite radio programs, This American Life, take up the issue of software patents. Computer programmers have been sounding the alarm about this problem for two decades, and it’s great to see mainstream media outlets finally start to give the issue the kind of attention it deserves. TAL devoted a full hour to the subject, focusing on Intellectual Ventures (which I’ve written about at length) and did an absolutely spectacular job.

This American Life‘s story-telling format makes it great for describing a problem, but it didn’t spend any time discussing potential solutions. So in this post I hope to fill in the gap by describing what I believe to be the best solution and how we ought to get there.

In my view, the solution is straightforward: software shouldn’t be eligible for patent protection. That might sound simplistic, but there are good reasons to think abolition of software patents is the right reform. Software is fundamentally different than other types of inventions. For starters, software is virtually alone in being eligible for both patent and copyright protection. This makes patent protection mostly superfluous. Second, writing software is an individual, expressive activity at least as much as it is an engineering discipline. We don’t expect novelists to hire patent lawyers, and computer programmers shouldn’t have to either. Finally, the “software industry” is radically more diffuse and diverse than the typical patent-eligible industry. Every business with more than a handful of employees has an IT department producing potentially patent-infringing software. No other category of patents has this characteristic.

Unfortunately, as Matt Yglesias points out, the patent reform legislation now working its way through Congress is woefully inadequate. I’d love to think that a wave of negative publicity for software patents would produce better legislation, but that’s not realistic. At this point, software patents simply benefit too many entrenched interests to expect Congress to enact serious reforms.

That means that the best hope for reform lies with the courts. The Supreme Court said three times that mathematical algorithms (a.k.a. “software”) are not eligible for patent protection. Unfortunately, the last of these decisions was three decades ago, and it was muddled enough to allow lower courts to gradually make software patents easier to get.

But in principle, those old Supreme Court decisions are still good law, even if lower courts have gotten in the habit of ignoring them. The Supreme Court just needs to say they really meant it. Indeed, many software patent critics hoped that last year’s Bilski v. Kappos case would be a first step in that direction. The case focused on “business method” patents, which was legalized in the same 1998 decision that decisively legalized software patents. But the Bilski case wound up being a 5-4 nail-biter, with a conservative majority striking down the particular business method patent in the case but refusing to rule out business method patents in general.

There is strong circumstantial evidence that Justice Scalia was (uncharacteristically) the swing vote, and that he is deeply ambivalent about business method and software patents. In his majority opinion, Justice Kennedy worried that invalidating business method patents would “create uncertainty as to the patentability of software, advanced diagnostic medicine techniques, and inventions based on linear programming, data compression, and the manipulation of digital signals.” That would be a pretty depressing read for software patent opponents like me except that Scalia pointedly declined to join this part of the majority opinion. With only four votes, that part of the opinion isn’t binding precedent. And this isn’t the first hint that Scalia has doubts about software’s patentability.

Justice Stevens wrote an impassioned dissent calling for business method patents to be invalidated. Stevens retired shortly afterwards (see my tribute), but his dissent was signed by the three other liberals still on the court. We don’t know what Justice Kagan thinks, but it seems likely that she would have sided with her fellow liberals. Four liberals plus Justice Scalia would be a majority.

Of course, invalidating software patents at this point would be intensely controversial, because it would invalidate hundreds of thousands of patents—worth billions of dollars—at a single stroke. Courts always try to avoid upsetting apple carts. But in this case, invalidating those patents would be good policy in addition to good law. The growing value of software patents represents not the production of new wealth but an increasingly lucrative form of rent-seeking. As the number and value of software patents grows, the case for invalidating them gets stronger, not weaker.

But the Supreme Court won’t take such a dramatic step unless there is a broad consensus that patents are detrimental to software innovation. And this is why it’s so valuable to have mainstream programs like This American Life covering the issue. Justice Kennedy was obviously unaware that most computer programmers consider patents an impediment to their work. Only if this fact becomes common knowledge, in the way that everyone knows doctors hate malpractice lawsuits, will we have any hope of the Supreme Court—and specifically Justice Scalia—doing the right thing.

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I am myself a software engineer and an entrepreneur and I would frankly say that patents hinder growth of new ideas rather than encouraging them. In today’s world even if you write a single line of code you are probably infringing someone’s patent. When you are startup the last thing you want is some big corporation or troll with unlimited resources asking you to either pay up huge royalty fees or get sued. As an engineer, the driving force to innovate come from the fact that you can execute and produce something for the world to appreciate. You are rarely thinking of patenting the technology and just sitting on it. Part of the problem is USPTO’s leniency when it comes to issuing software patents. They should be very strict and only issue patents if something is truly innovative and don’t allow common/obvious behaviors to be patented.

Software patents (along with DNA sequence patents and other ‘pure information pattern’ patents) are just the tip of the current patent system fiasco iceberg. The vast majority (easily 95%) of ALL patents granted today should be denied on obviousness or prior art grounds, but due to the well-known patent office limitations they sneak by. Since the system rewards the patent owner and presents no penalties for junk patents “rational” (profit-seeking) players like IV of course abuse it and create a vast industry of patent trolls (regardless of IV’s claim to the contrary).

Nobody seems to remember what societal function patents were supposed to serve: a patent is a contract between the inventor and society in which in return for disclosing the invention which benefits the society in the long term the society grants the inventor a limited period of exclusivity for the practice of their invention. That’s it – nothing about “and perpetuate their monopolistic, innovation-starving hold hold on industry XYZ”.

VERY few patents today would pass that test of societal benefit – they have instead become a bureaucratic mechanism for the maintenance of pseudo-monopolies and rent-seeking that leads to artificial concentration of technologies (and excessive profits) that is in most cases clearly and provably NOT to the society’s benefit.

This is one of the few cases where a “back to basics” look at the origins of an entire branch of law could certainly introduce some welcome sanity into the system.

“…if you’re against software patents, you’re against patents in general. Gradually our machines consist more and more of software. Things that used to be done with levers and cams and gears are now done with loops and trees and closures. There’s nothing special about physical embodiments of control systems that should make them patentable, and the software equivalent not.” That’s from: http://www.paulgraham.com/softwarepatents.html

Personally, I agree w/the author that SW patents as implemented by the USPTO and our court system are a problem, but I think the solution is not to toss them out completely. We need to have heightened standards of obviousness & novelty, losing plaintiff pays, etc.

Software patents remain unpopular. But instead of advocating for getting rid of software patents altogether, perhaps concerned parties should begin discussions on how to create a software patent that works for developers. For instance, instead of the usual costly, 20-year patent, maybe it’s time for an inexpensive, limited, 5-year software patent that reflects software’s low overhead and rapid obsolescence? Some other countries offer multi-tiered patent systems; I think it’s time the U.S. started discussions in that area. http://www.GeneralPatent.com/blog/

I spent a few years consulting on patent infringement suits (both offense and defense) and read an studied at least 1,000 patents. Most of them as far as I could see were not new and not-obvious and probably should have not been granted. How can you tell if something is new? So many lines of code have been written over the years but most is hidden and even if you read the code you may not easily be able to determine what the idea is without a lot of work. If you are a software developer and you want to avoid infringing on existing patents it is really hard – just looking at titles and abstracts won’t suffice, and sometimes even just reading the claims isn’t really good enough.

Tim, I believe that your suggested long-term solution is the right one — we need to eliminate software patents. However, in the meantime, there are some simple things we can do to help better protect individuals from patent litigation and to stop pumping money into unnecessary patent royalties.

For example, when sharing media online, we can use free media formats such as Ogg Vorbis and Ogg Theora, in addition to or instead of using patent-encumbered formats such as MP3.

Over at the Free Software Foundation we are encouraging This American Life to distribute their digital version of their program in Ogg format.

You can see our initial blog post [1] and email [2] at the links below:

It’s not just software patents that are abused. Consider the case of Jerome Lemelson, the man who “invented” bar code scanning in the early 1950′s, but is perhaps more infamously known for something called a “submarine patent.” This technique allowed him to keep an old patent application open by making numerous revisions over the course of years — sometimes more than 20 years — changes which he made as he kept abreast of technology. Thus, the original patents he applied for — before computers, printers, and scanners — he was able to still collect royalties for many, many years later. Lemelson never actually built any machines, nor did he manufacture a line of equipment. Yet, he made billions by suing for infringement from many Fortune 500 companies before he was finally stopped. Still, today he even has his own wing in the Smithsonian, built in his honor.

Many abuses could be prevented with one simple change: to get a patent, an inventor must submit a working prototype.

These comments show a mix of anger and frustration with regards to the current state of patenting software. That is understandable. As a patent attorney and former employee of IV, I have a somewhat different proposal for addressing the problems that trolls can cause.

As a start, I would not throw away any possible positive aspects that result from the availability of patents on methods or functions that are implemented by software. But, at the same time I would recognize that the public policy goals of the patent system are not being served by IV and similar companies.

An issue that needs to be addressed is whether it is just the existence of patent trolls that is a problem, or whether we can live with them if they are required to operate in a more transparent manner. Secondly, if we require a more transparent operation so that the “market” for patents is not distorted, then do trolls serve a function that is economically desirable or at least is not in opposition to the goals of the patent system (to foster innovation, provide a way for inventors to benefit from their innovations, etc.).

So I would propose the following, as at least a transitional approach:

(1) require fuller disclosure of who is buying a patent portfolio – no more false front entities

(2) require fuller disclosure of who is providing the funds to purchase a patent portfolio and if they will obtain a license to any patents that are bought

(3) consider a change to the patent laws requiring that there be a working requirement for patents that is applied to all but the original assignee

(4) consider a form of compulsory licensing if the working requirement is not satisfied

(5) improve the quality of the examination of software related inventions in the US PTO by helping the courts to more clearly understand and articulate the creative processes involved in generating algorithms, etc. so that they can understand the difference between a “mental step” and a software implemented process.

These are just a start but a dialog needs to get started that addresses whether the existence of patent trolls is compatible with the public policy goals of the patent system.

Holy cow! what a morass of intellectual logjam. The intellectual property system of laws as a whole is what needs examining.

In a global economy it is of major importance . Especially if a market economy is to be sustained. Intellectual property was important during the infancy of capitalism. Arguably, the economy is still in infancy. But if it isn’t, then a mature economy will no longer need to incentivise technological progress and the whole IP law can be made a past chapter in human development.

As things stand now IP laws will soon bring us to blows and hinder human progress more than help it.